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Board Issues Decision in Arnaudo Brothers, LP, et al. Case No. 2012-CE-030-VIS

On April 4, 2014, the Board issued its decision and order in the above-entitled case. This matter is based on allegations that Arnaudo Brothers (Employer) violated sections 1153(a) and (e) of the Agricultural Labor Relations Act (ALRA) by refusing to furnish information to the United Farm Workers of America (UFW) and by refusing to bargain with the UFW.

ALJ Decision

On September 26, 2013, the Administrative Law Judge (ALJ) issued his recommended decision and order. The ALJ found Respondent violated sections 1153(a) and 1153(e) of the ALRA, rejecting Respondent’s various defenses. The ALJ held that Respondent, without justification, failed to timely respond to the information requests, and in some cases, did not respond at all. The ALJ also found that Respondent, without justification, failed to meet with the UFW in negotiations.

Board Decision and Order

The Employer argued in its exceptions that during the hearing, the ALJ prevented Employer from pursuing lines of questioning that would have elicited evidence on the UFW’s alleged disclaimer of interest and waiver of rights due to its 30 year absence. The Board rejected the Employer’s abandonment defense, stating that it was well-established that the union’s absence alone did not constitute a waiver of rights, rather “[o]nly two events aside from decertification in a Board election have been recognized as effective to terminate a certification: (1) a disclaimer by the certified union of its status as collective bargaining representative or (2) the certified union’s ‘defunctness,’ i.e., its institutional death and inability to represent the employees.” (Pictsweet Mushroom Farms (2003) 29 ALRB No. 3, p. 6.) The Board found that it had insufficient evidence to determine whether a disclaimer of interest had occurred because the record was not fully developed on that issue. Therefore, the Board remanded the matter to the ALJ to take evidence on the sole issue of whether a disclaimer of interest occurred.

The Board dismissed the Employer’s remaining exceptions and upheld the remainder of the ALJ’s decision.

See Arnaudo Brothers, Inc. (2014) 40 ALRB No. 3

Board Issues Decision in Arnaudo Brothers, Inc., Case No. 2013-MMC-001

On March 27, 2014, the Board issued its decision and order in the above-entitled case.

Background

On February 13, 2013, pursuant to a request by the United Farm Workers of America (the “UFW”), the Agricultural Labor Relations Board (the “ALRB” or “Board”) referred the UFW and Arnaudo Brothers, Inc. (the “Employer”) to Mandatory Mediation and Conciliation (“MMC”). On December 16, 2013, the parties met with their selected mediator (the “Mediator”) for their final mediation session. A transcript of the proceedings was prepared. On January 21, 2014, the UFW filed a copy of the transcript of the December 16, 2013 mediation session with the Board. Both the UFW and the Employer subsequently filed petitions for review with the Board pursuant to Labor Code section 1164.3 treating the transcript as the report that the Mediator is required to prepare and file pursuant to Labor Code section 1164(d) and Board regulation 20407(d).

Board Decision

The Board dismissed the petitions for review as premature on the ground that the transcript failed to meet the statutory and regulatory requirements for a mediator’s report. The transcript was not filed by the Mediator as required under Labor Code section 1164(d) and was not signed by the Mediator as required under Board regulation 20407(d). Additionally, the transcript failed to serve as a mediator’s report of the final terms of the collective bargaining agreement. The transcript referenced numerous sections and clauses to be included in the contract without providing the substance of those provisions. Finally, the Board noted that if the Board accepts review of any provisions of a report, the provisions that are not the subject of the petition for review go into effect as a final order of the Board. Accordingly, the Board held that any document submitted as a report should allow the parties and affected employees to determine the final terms of the agreement, a standard that the transcript did not meet. Because the Board had not received a proper mediator’s report, the Board concluded that the petitions for review were premature and the petitions were dismissed without prejudice.

See Arnaudo Brothers, Inc. (2014) 40 ALRB No. 2

Board Issues Decision in Perez Packing, Inc., Case No. 2014-MMC-001

On March 26, 2014, the Board issued its decision and order in the above-entitled case.

Background

Petitioner, United Farm Workers of America (“UFW”), has been the certified collective bargaining representative for the agricultural employees of Perez Packing, Inc. (“Employer”) since December 5, 1989. On January 21, 2014, the UFW requested that the Board direct the UFW and the Employer to engage in mandatory mediation and conciliation (“MMC”) pursuant to sections 1164(a)(1) and 11641.11 of the Agricultural Labor Relations Act (“ALRA” or “Act”), with the goal of reaching a collective bargaining agreement (“CBA”). In support of its MMC request, the UFW submitted declarations pursuant to sections 1164(a)(1) and 1164.11 of the Act, and implementing regulation, California Code of Regulations, title 8, section 20400. One of the declarations stated that the Employer had committed an unfair labor practice (“ULP”) as found by the Board in its decision in 39 ALRB No. 19. On January 24, 2014, the Employer timely filed an answer to the UFW’s MMC request, denying there was a final decision that it had committed a ULP, as the decision in 39 ALRB No. 19 was under appellate review. The Employer further challenged the UFW’s declarations as being based on inadmissible hearsay, and also denied that the UFW ever made an initial demand to bargain as required by the aforementioned statutes and regulation.

Board Decision

Where a labor organization was certified for a particular bargaining unit before January 1, 2003, sections 1164(a)(1) and 1164.11 of the Act, as well as Board Regulation 20400, require that in order for MMC to be imposed, there must be a final determination that the involved employer has previously committed a ULP. For the purposes of directing parties to MMC under said provisions, such a determination may be made when the Board has issued a final decision and order finding the Employer liable for a ULP. This is true even if the ULP has not been reduced to a judgment, or is undergoing appellate review. This standard comports with the similar standard set forth in section 10(f) of the National Labor Relations Act (“NLRA” ; 29 U.S.C. § 160(f)), which provides that a finding that a ULP has been committed is a final order, as it is reviewable – and whether such review is sought is irrelevant to the finality of the order.

The Board, pursuant to Board Regulation 20402(c)(3), ordered an expedited hearing to resolve the factual questions raised by the Employer with respect to the UFW’s alleged failure to make an initial demand to bargain, as well as the hearsay issues in the UFW’s declarations in its request for MMC.

See Perez Packing, Inc. (2014) 40 ALRB No. 1

ALJ Issues Decision in Gurinder S. Sandhu dba Sandhu Poultry and Farming, Case No. 2012-CE-010-VIS

On February 20, 2014, Administrative Law Judge (ALJ) Douglas Gallop issued his decision in the above-entitled case.

The complaint alleged that Respondent violated section 1153(a) of the Agricultural Labor Relations Act (ALRA) by discharging Elvia Hernandez for engaging in protected concerted activity. Respondent contended that Hernandez quit over a pay dispute. The ALJ held that Respondent unlawfully discharged Hernandez when she concertedly protested a change in work assignments and associated issues, such as show-up pay, gasoline expenses and payment for the work performed that week.

The ALJ issued the usual cease and desist and notice-posting orders; however, the ALJ found that Respondent made a valid offer of reinstatement for Hernandez to the Board agents investigating the case, and the offer was related to her. Upon her refusal of the offer, Respondent’s backpay liability terminated. The ALJ also rejected General Counsel’s argument, that Hernandez’s backpay continued after she refused the offer, because she was privileged to reject it, due to Respondent’s abhorrent working conditions. The ALJ found that this remedy is probably not available under the ALRA and, even if it is, there was insufficient evidence to show that reinstatement and backpay were not appropriate in this case. The ALJ further denied, as a remedy, that Respondent’s supervisors undergo sexual harassment training, to be conducted by Board agents. The ALJ held that even if Respondent had engaged in such conduct, this remedy is not within the mandate of the ALRA and, therefore, the Board is not authorized to order such training.

See Gurinder S. Sandhu dba Sandhu Poultry and Farming, Case No. 2012-CE-010-VIS

Governor Brown Announces Appointment of William B. Gould IV to ALRB

On February 19, 2014, Governor Edmund G. Brown, Jr. announced the appointment of William B. Gould IV as member and chair of the Agricultural Labor Relations Board effective March 18, 2014.

Mr. Gould has been Charles A. Beardsley professor of law, emeritus at Stanford Law School since 2002, where he has held multiple positions since 1972, including professor of law. He was chairman of the National Labor Relations Board from 1994 to 1998. Mr. Gould was a visiting professor of law at Harvard Law School from 1971 to 1972, professor of law at Wayne State University Law School from 1968 to 1972 and a lawyer at Battle Fowler Stokes and Kheel from 1965 to 1968. He was an attorney-advisor for the National Labor Relations Board from 1963 to 1965 and assistant general counsel for the United Automobile Workers from 1961 to 1962. Mr. Gould is a member of the National Academy of Arbitrators. He earned a Bachelor of Laws degree from Cornell Law School.

See Governor Brown's Press Release.

ALRB Sacramento Headquarters Office New Location

The Agricultural Labor Relations Board's Sacramento Headquarters Office moved to a new location effective May 1, 2013. The office is now located at 1325 J Street, Suite 1900, Sacramento CA 95814-2944, across from the Sacramento Convention Center and near the Sheraton Hotel. Telephone and fax numbers remain the same.

ALJ Issues Decision in Kawahara Nurseries, Inc., Case Nos. 2011-CE-004-SAL, et al.

On January 14, 2014, Administratie Law Judge (ALJ) Douglas Gallop issued his decision in the above-entitled case.

The original charges alleged that Respondent refused to rehire three employees from layoff, in retaliation for their assistance to the UFW during an election campaign. After an amended charge, and additional allegations not contained in any charge, the complaint alleged that Respondent unlawfully laid off and refused to rehire 14 workers for their union support, and also refused to rehire two of them because they testified for the UFW in a challenged ballot hearing. The ALJ found that the additional allegations were closely related to the original charges, but a majority of the layoff allegations were untimely, because those layoffs took place more than six months prior to the filing and service of the original charges.

On the merits, the ALJ dismissed the layoff allegations. Respondent laid off 60 bargaining unit employees on various dates in 2010. General Counsel did not contest 46 of these layoffs, but contended that the 14 others were selected for layoff based on union considerations. The layoffs took place at least six months after Respondent became aware of the workers’ support for the UFW, and several known key UFW supporters were not laid off. The ALJ, in addition to the statute of limitations issue, held that General Counsel failed to establish that prohibited considerations were a motivating factor in these layoffs. Rather, Respondent selected workers for layoffs based on its staffing requirements, and the comparative ratings assigned to them by their supervisors in job performance evaluations, along with their disciplinary histories.

The ALJ found that Respondent violated section 1153(a) and (c) by refusing to rehire five of the alleged discriminatees. These workers applied for rehire in positions they were qualified to perform, at a time Respondent was hiring. Respondent presented false, shifting and unsubstantiated defenses to these allegations, and did not even consult with the workers’ former supervisors, before refusing to rehire them. It had previously relied almost exclusively on the supervisors’ employee ratings in selecting who would be laid off. The ALJ found that Respondent additionally violated section 1153(a) and (d) by refusing to rehire two of these employees, who had testified in the challenged ballot hearing shortly before they applied for rehire.

The ALJ dismissed the remaining refusal to hire allegations, because all but one of these other employees failed to apply, and under the facts presented, that element of the prima facie case could not be waived. The ALJ dismissed the allegation concerning the other employee, because his application was ineffective. The employee carelessly left his application on the floor in front of the manager’s office, and he never received it.

See Kawahara Nurseries, Inc., Case Nos. 2011-CE-004-SAL, et al.

Office of Administrative Law Approves Regulations To Implement Senate Bill 126

On May 2, 2012, the Office of Administrative Law (OAL) approved the regulations adopted by the ALRB on April 18, 2012, implementing Senate Bill 126 and filed the approved regulations with the Secretary of State. OAL also granted the ALRB's request that the regulations go into effect immediately upon filing, therefore the regulations are now in effect. On April 18, 2012, the Agricultural Labor Relations Board (ALRB or Board) adopted regulations to implement Senate Bill 126. That bill made various changes to the Agricultural Labor Relations Act. The Board had previously held a public hearing on January 20, 2012 on the proposed regulations, hearing oral comments and accepting additional written submissions. At its scheduled February 1, 2012 public meeting the Board voted to adopt the regulations with what were considered nonsubstantive changes in response to the public comment received. While the proposed regulations were pending review by the OAL, it came to the Board’s attention that some of the changes arguably could be termed “substantive” and thus may have required a 15-comment period. Accordingly, in order to ensure complete compliance with the letter of the rulemaking requirements of the Administrative Procedure Act (Gov. Code § 11340, et seq.), on March 21, 2012 the Board withdrew the rulemaking file from OAL and rescinded its February 1, 2012 adoption of the proposed regulations. The Board then issued a 15-Day Notice providing the public the opportunity to submit comment on the changes made. No comments were received.

Text of Amendments to Implement SB 126, as Adopted on April 18, 2012

Subsequent Histories Table

The Subsequent Histories Table has been updated to include Board decisions through Volume 38 (2012). The updated pages are page 40 and 41.

See Subsequent Histories Table for updated page.

2010 and 2011 Case Digest Supplements

The supplements to the ALRB Case Digest for Volume 36 (2010) and Volume 37 (2011) can be used in conjunction with the digest issued in January of 1994 and the earlier supplements previously issued.

See 2010 ALRB Case Digest Supplement and 2011 ALRB Case Digest Supplement.

Case Digest Merged

The Case Digest and its supplements through 2011 have been merged into one document.

See ALRB Case Digest.